When I opened up a newspaper a few weeks ago and saw an ad by Chobani for its Simply 100 Greek Yogurt, my first thought was, “that’s going to provoke a false advertising dispute.” Here’s what Chobani said about its competitor Yoplait: “there’s potassium sorbate as a preservative in Yoplait Greek 100. Potassium sorbate? Really? That stuff is used to kill bugs.” Chobani also went after Dannon with a similar line of attack: “there’s sucralose used as a sweetener in Dannon Light & Fit Greek! Sucralose? Why? That stuff has chlorine added to it!” Litigation in fact was brought against Chobani by General Mills (the owner of Yoplait) and Dannon.
In a pair of rulings issued by the federal court for the Northern District of New York (Dannon Decision and Yoplait Decision), the court issued a preliminary injunction against Chobani’s false advertising campaign. As a matter of false advertising law, the opinions were interesting in how the court characterized the nature of the false statements made by Chobani. The two most common forms of false advertising are: (1) literally false statements; and (2) statements that are literally true but misleading by implication. The difference in evidentiary proof for these two forms of false advertising are significant. For literally false statements, a plaintiff can succeed on a false advertising claim by proving that the disputed statements are factually false. However, for statements that are literally true but impliedly misleading, a plaintiff is generally required to present survey evidence demonstrating that consumers were in fact misled by the advertising claims.
Here, Yoplait does in fact contain potassium sorbate and Dannon yogurt does actually include sucralose as an ingredient. Thus, had the court determined that the challenged statements were literally true but misleading by implication, General Mills and Dannon would have needed to present market research evidence showing that consumers took away the misleading message that their products were unhealthy, harmful, contained pesticides or pool chlorine. It’s likely that this type of consumer survey evidence could have been obtained. But conducting a survey takes time, and Yoplait and Dannon likely wanted to get in to court fast to try to stop Chobani’s ad campaign.
The potential timing problem was resolved by the court’s holding that Chobani’s advertising fell into a less common, third category of false advertising: statements that are “literally false by necessary implication.” As the court explained, even where “no combination of words” found in the advertisement is untrue, the message conveyed by the advertisement may still be literally false if its clear meaning, considered in context, is false. Under this doctrine, a claim for literal falsity exists – without the need to proffer consumer survey evidence – when “considering the advertisement in its full context, the relevant audience would recognize the false implied claim as easily as if it had been stated explicitly.”
The court considered the Chobani advertising in its full context, including additional content stating that “not all yogurts are equally good for you” and other references to “bad stuff” found in other yogurt products. Under these circumstances, the court found that Chobani’s advertising unambiguously conveyed the literally false message that the Dannon and Yoplait products were “unsafe to consume.” General Mills and Dannon were therefore likely to succeed on the merits of their claims. Further finding that General Mills and Dannon satisfied the legal standard for obtaining preliminary injunctive relief, Chobani was enjoined from continuing the “Simply 100” ad campaign.